C. A. 1905 LEWIN V. END. LEWIN V. CIVIL SERVICE SUPPLY 2.30 P.M. There was no one there at night, except two watchmen, who were stationed on the staircase, boxes being placed there for their convenience. They had no access to the rooms, but they could inspect them by means of gratings in the doors, which were locked at night. There was a refreshment room, with which a kitchen was connected, for the use of the customers. The waitresses were allowed to have their lunch ASSOCIATION. in the refreshment room before it was opened to the customers, but the other assistants had to go out for their meals. In the church of St. Paul a mid-day religious service was during a considerable part of the year held for the benefit of shop assistants. The judge of the county court, on the authority of the decision of the Court of Exchequer in Surman v. Darley (1), held that neither of the defendants was liable to the rate, and this decision was affirmed by the Divisional Court. In Surman v. Darley (1) the question was, whether Covent Garden Theatre was liable to be rated under the above Acts, and the Court of Exchequer held that it was not. In his judgment in that case Pollock C.B. said (2): "We all think that the term 'house' primâ facie means a dwellinghouse. . . . It seems to me that this Act was intended to apply only to dwelling-houses occupied by individuals as such, and that such buildings as warehouses and counting-houses were not included in it. Neither can we construe it to extend to other buildings which, strictly speaking, are not houses, though popularly called so.” And Alderson B. said: "It" (the second Act) "clearly meant to impose the charge only on dwelling-houses, or, at all events, on those which are capable of being occupied as such. The first Act is a key to the second, and shews that the parties who were to be liable to the rate were those who would derive benefit from the services of the rector, curate, clerk, or sexton." LEWIN v. END. Macmorran, K.C., and Clarke Hall, for the plaintiffs. It is submitted that the houses rateable under these Acts are not (1) 14 M. & W. 181. (2) 14 M. & W. at p. 185. C. A. 1905 LEWIN V. END. LEWIN V. CIVIL SERVICE SUPPLY only dwelling-houses. The Act of George III. applies to "all houses within the parish." The Act of Charles II. imposes the charge on the "houses of the inhabitants" of the parishthat is, houses intended in some sense for human habitation or occupation, but not necessarily dwelling-houses. The learned county court judge decided the case on the authority of Surman v. Darley (1), and so did the Divisional Court. In that case the Court of Exchequer held that Covent Garden Theatre was ASSOCIATION. not rateable under these Acts. Pollock C.B., no doubt, said (2) that the Act applied only to dwelling-houses; but Alderson B. said (2) that the Act imposed the charge "only on dwellinghouses, or, at all events, on those which are capable of being occupied as such." It is submitted that the houses occupied by the defendant End are "capable of being occupied" as dwelling-houses. Very slight alterations would restore the houses to the condition of dwelling-houses. The word "house" and the word "inhabitant" may have different meanings according to circumstances: Wilson v. Churchwardens of Sunderland (3); Daniel v. Coulsting (4); Wright v. Ingle. (5) In the latter case it was held that the word "house" included "every building which is capable of being used as a human habitation." There is no reason for restricting the meaning of the word "house" in those Acts. And these houses may be properly said to be "inhabited" by the defendant and his tenants. In Lewin v. Newnes, Ld. (6), a case under these same Acts, it was held that houses in this parish which were used as offices, warehouses, store-rooms, and counting-houses, some being occupied by caretakers and their families, who lived and slept there, were liable to this rate. It is submitted that the liability to the rate cannot depend upon whether a caretaker sleeps on the premises. [They also referred to Stephenson v. Langston (7); Prideaux's Churchwardens' Guide, 16th ed. p. 7.] John Sanderson and Walter Frampton, for the defendant (1) 14 M. & W. 181. (2) 14 M. & W. at p. 185. (3) (1864) 34 L. J. (M.C.) 90. (4) (1845) 7 Man. & G. 122. (7) (1804) 1 Hagg. Con. 379. C. A. 1905 LEWIN V. END. LEWIN v. CIVIL SERVICE SUPPLY End. It is submitted that the principle of the decision in Surman v. Darley (1) was right, and that the Court will not now depart from it. And the facts of the present case are such as to bring it within that principle. Lewin v. Newnes, Ld. (2), entirely differed in its facts from the present case. In Riley v. Read (3) it was held that a building used in part as a club and in part as an auctioneer's office, and in which no one ASSOCIATION. slept, was not an "inhabited dwelling-house", so as to be subject to inhabited house duty. In Nunn v. Denton (4) it was held that a building, the lower part of which was used as a cow-house and stable, an upper room being used as a dwellingplace, was properly described as a "house" for the purpose of qualifying for a vote in the election of a member of Parliament. And Tindal C.J. treated sleeping in the building at night as the test. "Capable of being used" as a dwelling-house must mean capable of being so used at the time when the rate is assessed. As was said by Alderson B. in Surman v. Darley (5), the Act of Charles II. "shews that the parties who were to be liable to the rate were those who would derive benefit from the services of the rector, curate, clerk, or sexton." Persons who come only for the purpose of daily business and who are not in a house on Sunday do not derive any benefit of that kind. A man who wished to be married at the parish church by banns must "reside" in the parish in the ordinary sense of the word. LEWIN v. CIVIL SERVICE SUPPLY ASSOCIATION. Macmorran, K.C., and Clarke Hall, for the plaintiffs. The facts of this case are no doubt quite different from those in Lewin v. End. The Civil Service Stores were never a dwelling-house; they were built for the purpose of being used as "stores"; and the question is whether premises which are used for business purposes only can escape the payment of this rate. The rate is imposed on the inhabitants, and there is no reason why business premises should escape the payment. The appeal is really brought in the interest of the other (1) 14 M. & W. 181. (2) 90 L. T. 160. (3) (1879) 4 Ex. D. 100. (4) (1844) 7 Man. & G. 66; 66 R. R. 680. (5) 14 M. & W. at P. 185. occupiers in the parish. A fixed amount has to be raised by means of this rate, and if some premises are exempt the charge on the others will be heavier. The stores are structurally capable of being occupied as a dwelling-house. And, as to the argument about the services of the rector, special mid-day services are held in this parish church for the benefit of clerks and shop assistants. Danckwerts, K.C., Morton Smith, and Henn Collins, for the ASSOCIATION. Civil Service Supply Association. The decision in Surman v. Darley (1) is just sixty years old, and the Court will not now depart from the principle there laid down: Merry v. Nickalls. (2) The meaning of the word "house" may, no doubt, vary according to circumstances, but there is no good reason for departing from the decision in Surman v. Darley. (1) [They referred also to Reg. v. Christopherson (3); Rex v. Inhabitants of North Curry. (4) They were stopped by the Court.] Clarke Hall, in reply in both cases. This Court can overrule Surman v. Darley. (1) But the passages in the judgments in that case which are relied on by the respondents are really only obiter dicta. Covent Garden Theatre was clearly not a house. VAUGHAN WILLIAMS L.J. I do not see my way to depart from the decision of the Court of Exchequer in Surman v. Darley. (1) In that case it was decided that Covent Garden Theatre was not liable to the rate because it was not a dwellinghouse. It is beyond argument that neither of the buildings now in question is in fact at present used as a dwelling-house. No one, I think, can doubt that if a covenant had been entered into by the tenants of these buildings that they would not use the premises otherwise than as dwelling-houses there would have been a breach of that covenant in each case. The Court of Exchequer did, I think, say that a house which in structure was capable of being used as a dwelling-house did come within the meaning of the word "house" in these (1) 14 M. & W. 181. (2) (1872) L. R. 7 Ch. 733, at p. 750. (3) (1885) 16 Q. B. D. 7. (4) (1825) 4 B. & C. 953. C. A. 1905 LEWIN V. two Acts. But, though they did say that, I think that a house "capable of being used as a dwelling-house means "capable in its present structural condition of being so used." In my judgment neither the Civil Service Stores nor Mr. End's building is, having regard to the evidence, a house in respect of which it could be truly said that it is "capable of being used as a dwelling-house." In these circumstances I think that ASSOCIATION. neither of these buildings is rateable, and the appeal must be dismissed. END. LEWIN v. CIVIL SERVICE SUPPLY ROMER L.J. I agree. In my opinion both these cases are governed by Surman v. Darley. (1) In order that the present appeals should succeed we must dissent from the ratio decidendi of that case. That decision is now just sixty years old. It has never yet been dissented from, but, on the contrary, it has been followed continuously up to the present time. That being so, I do not think that this Court after so long a lapse of time ought to overrule or depart from that decision. On the facts it appears to me that neither of these buildings is being used as a dwelling-house. No one dwells there. As regards the defendant End's building, it is not merely temporarily being used otherwise than as a dwelling-house, nor could it be used as a dwelling-house without substantial structural alterations. That being so, I think on the facts both cases fall within the decision in Surman v. Darley. (1) STIRLING L.J. I am of the same opinion. In my judgment we are not at liberty at this time to depart from the principle of the decision in Surman v. Darley. (1) It was laid down by the Court in that case that these Acts were meant to apply only to buildings which were substantially dwelling-houses. The appellants have relied on the language of Alderson B., who said (2) that the Act "clearly meant to impose the charge only on dwelling-houses, or, at all events, on those which are capable of being occupied as such." It was said that both the buildings now in question, though they cannot be said to be at the present time dwelling-houses, are "capable of being (1) 14 M. & W. 181. (2) 14 M. & W. at p. 185. |